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Non-occupational disease or accident – A Collective Bargaining Agreement may condition the right to dismiss

French Supreme Court, 27 March 2019, n°17-27.047

 In this case, an employee was on sick leave, then dismissed during his leave for professional shortcomings. Based on the provisions of the National Collective Bargaining Agreement (“CBA”) for Automotive Services dated January 15, 1981, he claimed damages for unfair dismissal. The Court of Appeal, while acknowledging that the evidence produced reflected “perfectly the reality of the failings and ultimately the professional shortcomings” of the employee, ordered the employer to pay damages for unfair dismissal based on the terms of the CBA provisions.

The decision was confirmed by the French Supreme Court: “the signatories of the CBA having aligned the conditions for dismissing an employee on sick leave with those provided for in the French Labor Code relating to the dismissal of an employee on sick leave due to an occupational disease or a work accident, the impossibility of maintaining the contract for a reason unrelated to the accident or the disease can only result from circumstances unrelated to the employee’s behavior, so that the employer cannot, while the employment contract is suspended, dismiss the employee for professional shortcomings“.

According to article 4.08 of the CBA: “Non-occupational disease or accident does not constitute in itself a ground for the termination of the employment contract. The employer may terminate the employment contract only for a serious or gross misconduct or if it is impossible to maintain the contract for reasons unrelated to the accident or illness“, thus aligning with the provisions of Article L.1226-9 of the French Labor Code protecting employees who are victims of an occupational disease or a work accident.

Apart from gross misconduct, the French Supreme Court, in a restrictive construction of “reason unrelated to the accident or disease“, thus authorizes the dismissal of an employee whose contract is suspended for an occupational disease or a work accident only for a reason pertaining to the functioning of the company that is irrespective of the work accident, excluding a ground related to the employee’s behavior (French Supreme Court, 5 June 1990, n° 85-44.522).

In the present case, the Court of Appeal and the French Supreme Court decided that, although the professional shortcomings were actually established, the employer could not dismiss the employee for such a reason, which is belong to the professional conduct of the employee.